Fuljhari vs State
2021 Latest Caselaw 16529 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 709/2016

Fuljhari W/o Rajesh Gupta by caste Gupta, R/o Gali No.1, House NO. 74, Dev Nagar, P.S. Purani Abadi, Sriganganagar

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Anil Upadhyaya For Respondent(s) : Mr. B.R. Bishnoi, AGC Mr. Rakesh Matoria

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Judgment Reserved on : 25/10/2021 Date of pronouncement: 29/10/2021

Instant criminal appeal has been filed by the appellant under

Section 374(2) Cr.P.C. against the judgment dated 02.07.2016

passed by learned Special Judge, Women Atrocities Cases,

Sriganganagar in Sessions Case No. 85/2014 by which the learned

Judge convicted the appellant for offence under Section 304B and

498A IPC and sentenced to undergo ten years RI with Rs.5000/-

fine, default of payment of fine, to undergo six months RI and two

years R.I with fine of Rs. 2000/-, in default of payment of fine to

undergo two months R.I respectively.

Succinctly stated, the fact of the case are that the

complainant Sanjay Kumar lodged a written report with the

Station House Officer, Mahila Police Station, Sriganganagar

alleging inter alia that his younger sister Arti was married to Sunil

Kumar on 23.05.2014 and they have given dowry to the inlaws as

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per their status. It is alleged that after 10-15 days of marriage,

the mother-in-law and husband started harassing her physically

and mentally for demand of dowry. It was further mentioned in

the FIR that the husband Sunil Kumar left his sister at parental

home but after about ten days, her husband came to took her

back. It is alleged that on the date of incident, when the brother-

in-law of complainant Lal Babu went to inlaws' house of Arti to

bring them food, he informed telephonically that the inlaws were

quarrelling with Arti. After some time, Lal Babu again called the

complainant and told him that Arti has lit herself on fire. When

they reached on the spot, they found that Arti was lying dead on

floor.

On the basis of this report, an FIR No. 179/2014 was

registered for the offences under Sections 498-A and 304-B and

investigation commenced.

After usual investigation, the police submitted chargesheet

against the accused appellant for offence under Section 304-B and

498A IPC in the alternative 302 IPC. The charges were framed

against the appellant who denied the same and claimed trial.

The prosecution in its support examined eleven witnesses in

all and exhibited 17 documents. The statement under Section 313

Cr.P.C. was recorded. No witness was examined on the defence

side.

After conclusion of trial, the learned Judge, Women Atrocities

Cases, Sriganganagar acquitted the appellant for offence under

Section 302 IPC but convicted him for offence under Section 304-

B and 498A IPC vide judgment dated 02.07.2016 and passed the

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sentences as mentioned earlier.

At the threshold, learned counsel for the appellant submits

that the charge under Section 304B IPC cannot be sustained

against the appellant owing to lack of convincing proof to establish

that the deceased lady was harassed and humiliated in the

matrimonial home on account of demand of dowry soon before her

death. He craved acquittal of the accused of the charge for offence

under Section 304B IPC and urged that at best, even if the

evidence of the prosecution witnesses is accepted as such, then

too, the conviction of the accused can only be recorded for the

offence under Section 306 IPC. In the alternative, he urged that

considering the fact that the appellant is an old woman and there

is no evidence to show the existence of exceptional circumstances

warranting the sentence of ten years R.I, the sentence of ten

year's rigorous imprisonment awarded to the appellant deserves

to be reduced to the minimum permissible term of seven years for

the offence under Section 304B IPC.

On the other hand, the learned Public Prosecutor opposed

the submissions made by the learned counsel for the appellant.

The learned PP submitted that there is neither any occasion to

interfere with the sentence awarded to the accused appellant nor

any compassion or sympathy is called for in the said case. Learned

Public Prosecutor produced a report from Superintendent, Central

Jail, Bikaner according to which, the appellant has so far

undergone imprisonment of 07 years 10 months and 08 days.

It is an admitted fact that the deceased was married to the

accused husband and died within a period of seven years of

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marriage in the matrimonial home. The tenor of the evidence of

material witnesses is sufficient to satisfy the Court that the

deceased was harassed and humiliated in the matrimonial home

on account of demand of dowry soon before her death. The trial

court was perfectly justified in convicting the appellant for the

offences under Sections 498A and 304B IPC.

Having held so, to deal with the aspect of sentences awarded

to the accused appellant, it is relevant to refer to Section 304B(2)

of the IPC which reads as below:

"Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

On a plain reading of the Section, it is clear that the

minimum sentence provided for the offence is imprisonment for a

term which shall not be less than seven years but which may

extend to imprisonment for life. As the legislature has provided a

minimum sentence for the offence and since, the higher sentence

which may extend to imprisonment for life has been provided by

way of an exception, apparently, for awarding more than the

minimum sentence, the Court would have to look for special

features in the case.

In the present case, on the date of incident, some altercation

took place which incident appears to be the trigger for Smt. Arti to

end her life by setting herself on fire. The case does not involve

any such feature which warrants award of sentence of ten years

rigorous imprisonment to the accused appellant. I feel that the

ends of justice would be subserved by reducing the sentence

awarded to the appellant for the offence under Section 304B IPC

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from ten year rigorous imprisonment to seven years rigorous

imprisonment.

In this background, while affirming the impugned Judgment

on the finding of the conviction of the appellant for the offences

under Sections 498A and 304B IPC, the substantive sentence

awarded to her by the trial court for the offence under Section

304B IPC is liable to be reduced from ten years rigorous

imprisonment to seven years rigorous Imprisonment. The

sentence of fine and the default imprisonment awarded in lieu

thereof is maintained.

Accordingly, the appeal is partly allowed. While maintaining

the appellant's conviction and sentence for offence under Section

304 B IPC, the sentence awarded to her is reduced to the period

of seven years rigorous imprisonment. No interference is called for

in conviction and sentence recorded by the trial court for offence

under Section 498A IPC. The impugned judgment dated

02.07.2016 stands modified to said extent.

The appellant has suffered imprisonment of 07 years 10

months and 08 days. Thus, she has undergone the sentence in

default of payment of fine also. In these circumstances, the

appellant shall be released forthwith, if not required in any other

case.

The record of the trial court be sent back forthwith.

(MANOJ KUMAR GARG),J

187-BJSH/-

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